dissenting.
It seems to me that under the evidence herein, a parking facility is essential to the successful operation of plaintiff’s restaurant at the particular location involved. In that respect, I would hold the parking facility to be appurtenant to the restaurant facility. The parking facility in question had been used by customers of plaintiff’s predecessor without charge. This fact was generally known. The president of the plaintiff was negligent in not reading the lease before he signed it, and in not insisting that a parking facility be specifically included. In plaintiff’s defense it might be said it would not expect a governmental agency to divide the facilities under the peculiar facts in this case and not inform the bidders on the restaurant facility that free parking would no longer be available in the only parking space which could be used by restaurant customers.
Plaintiff’s lease was executed June 23, 1960. The parking lease was executed June 29, 1960. While defendants did not misrepresent the lease in any way, it seems to me that a measure of sharp practice is involved in not disclosing the fact that the parking facility was to be separately leased. It is very possible this would have made it more difficult to lease the restaurant facility, or at the very best would have resulted in a less favorable lease. Defendants could not help but know that plaintiff’s bid was based on the premise that the parking lot was included.
I feel there was a duty to make this disclosure.